Herren v. State

• Decision Date: 25 June 1941
• Docket Number: A--10034.
• Citation: 115 P.2d 258,72 Okla.Crim. 254
• Parties: HERREN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P.2d 258

72 Okla.Crim. 254

HERREN v. STATE.

No. A--10034.

Court of Criminal Appeals of Oklahoma

June 25, 1941

Syllabus by the Court.

1. In the absence of any record as to the facts introduced on a motion to quash the information filed by defendant upon his arraignment in district court, the presumption follows that there were facts introduced which sustained the findings of the court.

2. A matter assigned as error in the motion for a new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered in the appellate court.

3. The entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.

4. After a plea of not guilty is entered upon arraignment in district court without filing a motion to quash the information, the question as to the failure to have a preliminary examination is waived and may not be raised by an objection to the introduction of evidence at the beginning of the trial.

5. An information may be amended in matters of either form or substance when it can be done without prejudice to the substantial rights of the accused. No amendment shall cause any delay in the trial unless for good cause shown by affidavit.

6. Where an information charging the offense of receiving stolen property sets out the date, the names of the parties from whom the defendant is alleged to have received the stolen property, the names of the parties from whom the property is alleged to have been stolen, and enumerates specific articles alleged to have been received, together with "various other merchandise," the information may be amended to specifically describe the "various other merchandise." Such an amendment is an amendment as to form and may be made, with proper safeguards, after the trial has begun, in order to more fully describe the term "various other merchandise," and to comply with the proof introduced by the state and more fully developed by cross-examination of the state witnesses.

7. Record examined; no errors found which materially affect the substantial rights of the defendant; and evidence held sufficient to sustain conviction.

Appeal from District Court, Carter County; J. I. Goins, Judge.

Lee Herren was convicted of the offense of receiving stolen property, and he appeals.

Affirmed.

Defendant waived presentation of motion to quash information because justice of the peace refused to continue preliminary hearing because of absence of defendant's counsel and because justice of peace did not have jurisdiction to conduct examining trial by entering plea to merits of the case.

John B Ogden, of Ardmore, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen and J. Walker Field, Asst. Attys. Gen., for defendant in error.

JONES Judge.

The defendant was charged by information filed in the District Court of Carter County with the crime of receiving stolen property, was convicted and sentenced to serve one year and one day in the State Penitentiary, and has appealed.

Three assignments of error are presented in the brief of the defendant filed herein, to-wit:

First: Action of the justice of the peace in refusing to continue the preliminary hearing because of the absence of defendant's counsel was a denial of the defendant's constitutional right to be represented by counsel in every stage of the proceeding.

Second: The justice of the peace did not have jurisdiction to conduct the examining trial for the reason that the defendant filed an affidavit for a change of venue on account of the bias and prejudice of the justice of the peace, which change of venue was denied.

Third: Error of the district court in permitting the county attorney to materially amend the information after the trial had begun.

Counsel for defendant has filed a comprehensive brief covering the first two assignments of error, thoroughly presenting the law in support of his contentions. At the time the case was argued, this court remarked that it was much impressed with the merit of counsel's argument; but upon thoroughly checking the record, we are unable to find anywhere in the record any facts to support the contention of counsel. The propositions of law presented are correct; but they have no factual situation in the record to support them.

Both of these assignments of error are based upon events which are alleged to have happened before the magistrate who held the preliminary examination. The transcript of the papers filed before the justice of the peace are not included in the record. No transcript of the evidence or proceedings had before the justice of the peace appears in the record. The only statement in the record, which would in any way indicate that the events upon which these two propositions are based occurred before the examining magistrate, is set forth in a motion to quash the information filed by defendant upon his arraignment in the district court. This motion to quash the information properly raised the two questions presented by counsel. The motion to quash raised certain questions of fact for the determination of the district judge. In examining the record, we do not find any evidence submitted by the defendant in support of his motion to quash; and, in fact, so far as the record discloses, the motion to quash was never presented to the district court as there is no minute and no order appearing anywhere in the record showing that the motion to quash was ever presented or passed upon by the judge. So far as the record discloses, the motion to quash was filed prior to the time a demurrer attacking the sufficiency of the information was filed; but there appears a minute of the district court proceedings upon arraignment showing the demurrer was overruled, with exception allowed to the defendant, whereupon the defendant entered his plea of not guilty. The minute is silent as to any presentation or disposition of the motion to quash. The record is properly certified that it contains a true and correct copy and transcript of all pleadings, motions, orders, objections, and rulings by the court, all of the evidence and other proceedings in said cause; and this court is bound by such record. Nowhere in the record is there shown what disposition was made of the motion to quash. As was stated by this court in the recent case of Sweet v. State, Okl.Cr.App., 107 P.2d 817, 821:

"A matter assigned as error in the motion for a new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered in the appellate court," cited from Saunders v. State, 4 Okl.Cr. 264, 111 P. 965, Ann.Cas.1912B, 766.

When a motion to quash an information is filed upon arraignment of an accused in district court because of the absence of some essential proceeding in a preliminary examination, a question of fact is raised for the determination of the district court. In order for this court to determine whether the trial court proceeded correctly in the disposition of this motion, a record should be made of the facts introduced in support of the motion to quash. In the absence of any record as to the facts introduced pro and con on a motion, the presumption follows that there were facts introduced which sustained the judgment of the court.

The defendant's constitutional right to be heard by counsel is a right which may be waived. The record is silent as to whether defendant was heard by counsel at the preliminary examination or whether he even had a preliminary hearing. When a record is silent as to certain proceedings had upon the trial, every presumption of law is in favor of the regularity of the proceedings; and in order for this presumption to be overcome, the contrary must affirmatively appear in the record. Killough v. State, 6 Okl.Cr. 311, 118 P. 620; Henry v. State, 10 Okl.Cr. 369, 136 P. 982, 52 L.R.A., N.S., 113.

It is stated in 22 C.J.S., Criminal Law, § 589:

"In the absence of proof to the contrary, the proceedings of courts properly exercising criminal jurisdiction are presumed to be regular, and the mere failure of their records to show this, does not overcome the presumption. ***

In the absence of a showing to the contrary, the law presumes that accused has had a preliminary examination or has waived it, that proceedings leading up to a commitment by a magistrate were regularly conducted, that the magistrate performed the duties imposed on him by law, and that such duties were performed by the magistrate in good faith."

In the case of Ex parte Robinson, 56 Okl.Cr. 404, 41 P.2d 127, 129, it is held: "A preliminary examination may be waived before the committing magistrate or the preliminary examination, and the entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits."

Counsel for defendant raised the questions presented in his first two assignments of error by filing a motion to quash the information; but this motion to quash, so far as is disclosed by the record, was never presented to the court, and counsel waived the presentation of the same by entering his plea to the merits of the case.

After a plea of not guilty is entered, the question as to failure to have a preliminary examination may not be raised by an objection to the introduction of evidence at the beginning of the trial, which was attempted by counsel for defendant.

When the objection to the introduction of evidence was interposed defendant had incorporated in the record affidavits from four parties residing in the State of Texas, in which they stated that counsel for defendant was engaged in the trial of a...